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Update: Margaret Dongo v Registrar General test case
Zimbabwe Women Lawyers Association (ZWLA)
May 04, 2009

Zimbabwe Women Lawyers Association would like to inform all its members and stakeholders that the test case it initiated on guardianship was finally heard today (Tuesday 31 October) at the Supreme Court of Zimbabwe. ZWLA was representing Margaret Dongo against the Registrar General and The Attorney General. Appearing on behalf of ZWLA was Ms Sarudzayi Njerere and representing the 1st respondent was Mr. Drury of Messer's Gollop and Blank¹. The second respondent did not file opposing papers.

The facts of the matter are as follows

The Applicant Mrs. Dongo is married in terms of a registered customary law marriage². Sometime in 2006 she sought to procure a passport for her minor son and approached 1st respondent's office (The Registrar General). 1st Respondent refused to issue a passport in favour of the applicant and demanded that her husband signs the application forms as he is the legal guardian of the child. Applicant was aggrieved by this decision and approached ZWLA for relief and this led to the protracted legal dispute which was finally heard on the 31st of March 2009. The questions that were referred to the Supreme Court were as follows:

• Whether the guardianship of Minors Act is discriminatory?
• Whether the common law on guardianship is discriminatory of women?
• Whether the African customary law relating to guardianship is discriminatory of women?
• Lastly whether this above mentioned discrimination offends against s23 (1) (a) and (b) of the Constitution?

The position of the law

In terms of the Guardianship of Minors Act s3 thereof the father of children born in wedlock is the natural guardian of such children and exercises this right in consultation with the mother.

The Constitution sets out the grounds for non discrimination as including sex, gender, and marital status among others. However in s23 (3)(a) and (b) there are exceptions set out that exclude matters of personal law and African customary law from the discriminatory clause.

The proceedings in brief

The court undertook a two pronged inquiry

Firstly whether the Guardianship of Minors Act, the common law and customary law are in conferring guardianship on the husband for married persons is discriminatory and secondly whether this discrimination is saved by s23 (3) of the constitution.

Applicants counsel argued that the Guardianship of Minors Act is discriminatory on the basis of both sex and marital status in that a married woman cannot exercise the right of guardianship over her child as the law confers this right on the husband and secondly that an unmarried woman would be able to procure the passport on behalf of her child she would be able to do that on her own hence the law makes a distinction between married and unmarried women.

Reference was made to provisions in international human rights instruments such as CEDAW and the Protocol to the African Charter on the rights of women in Africa in relation to guardianship. In their arguments counsel were called upon to address whether guardianship is a concept of personal law and whether guardianship is a concept of African customary law. 1st Respondent's argument was that since applicant is married in terms of customary law she had consented to be governed by a system of law that embodies discriminatory practices hence she could not seek the relief sought. After hearing counsel from both sides judgment was reserved.

Way Forward

Even if we are not successful in this case because of the exceptions highlighted that exist in our Constitution we are nevertheless going to press for the removal of these claw backs in the Constitutional Review process that to be shortly undertaken.

Notes

1. At the hearing 1st respondent mobilized approximately 7 chiefs and other officials from the Registrar's Office. The Registrar's argument turned in part to the upholding of cultural values and norms.
2. This marriage is potentially polygamous.

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